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Mr. Alan Williams (Swansea, West) (Lab): May I reassure the Minister that the Liaison Committee and its member Committees are constantly asking for more draft Bills? If the Wales Office produces them, I assure it that they will be considered. However, that does not avoid the fact that after such Bills have been looked at, discussed in depth and amendments to them recommended, it is not the House that will decide whether the amendments will be accepted—it will be the Secretary of State.

Nick Ainger: That is not necessarily so.

Mr. Williams rose—

Nick Ainger: Let me describe the process, and perhaps that will help my right hon. Friend.
 
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Once the pre-legislative scrutiny has been undertaken, any suggested changes would return to the Assembly in a report produced by the Welsh Affairs Committee, or jointly by an Assembly Committee. In fact, the Assembly Committee may separately be considering the same proposal. It would then be for the Assembly possibly to reconsider the form of the draft Order in Council, taking into account the pre-legislative scrutiny. The order would then return to the Secretary of State, who would lay it before the House, and it would be debated. If members of the Welsh Affairs Committee or anybody else who had been involved in the pre-legislative scrutiny felt that their reasonable comments and suggested amendments had not been taken on board, it is possible that they could persuade their colleagues in the House that the order should not go through.

Mr. Williams: We would have to do that in the limited time of one and a half hours allowed to debate the order placed before the House. Virtually no one would be able to take part.

Nick Ainger: That is why it is so important that we have the pre-legislative scrutiny.

I respond to my right hon. Friend the Member for Torfaen by pointing out that these are important issues and we recognise the importance of getting them right. We will look at them and see whether there is any way to ensure that the Orders in Council receive full pre-legislative scrutiny and that there is no question—either now or in the future—that that could be circumvented in any way. I can give him that assurance.

Mrs. Gillan: How does the Minister see clause 94(7)(b) and subsection (8) fitting into the process? It appears that the Secretary of State can just say no and give a few reasons for saying no. The First Minister then just has to announce that to the Assembly. How does that fit in with what the Minister said in reply to the first intervention from the Father of the House? There appears to be an incongruity here.

Nick Ainger: Knowing my right hon. Friend's position, I think that he would be more than happy if the Secretary of State used the powers in clause 94. However, the Secretary of State will have to put in writing his reasons for refusal to lay an order, and if those reasons are unreasonable they will clearly be subject to judicial review. I think that that responds to that point.

Ian Lucas: I am most grateful for the reassurances that my hon. Friend the Minister has given about the importance of pre-legislative scrutiny. However, my concern is that there has been no reference whatever to a draft order being placed before Parliament before the Assembly considers it. Would it be possible for the legislation to provide for draft orders to be placed before this House as well as before the Assembly?

Nick Ainger: I do not wish to confuse my hon. Friend, but we need to be clear about what we are calling draft orders. Preliminary draft orders—the first draft, in effect—would undergo pre-legislative scrutiny in the same way as draft Bills, such as the Transport (Wales)
 
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Bill. We would have to keep calling the Measure a draft Order in Council until it was agreed to and thus became an Order in Council. I assure my hon. Friend that the preliminary drafts will come before the House for pre-legislative scrutiny every time.

6 pm

Mr. Dai Havard (Merthyr Tydfil and Rhymney) (Lab): My hon. Friend explained that there would be an iterative process through which we would end up with an Order in Council before Parliament. At that point, we would presumably discuss it as parliamentarians, so would there be a whipped vote or a free vote?

Nick Ainger: I speak as a former member of the Whips Office. The Secretary of State would be laying a Government order, so I would expect my hon. Friends to follow the Secretary of State's suggestion of supporting it.

We have had a long exchange on the detail of amendment No. 161. The hon. Member for Beaconsfield raised several points when he spoke to amendment No. 162, so it is worth putting our thinking on record. Amendment No. 162 would remove the protection afforded to an Assembly Measure against legal challenge on the ground of a procedural invalidity in the proceedings of the Assembly that led to its enactment. The Bill provides for the legal separation of the Assembly Government from the Assembly, as is the case here, in the Northern Ireland Assembly and in the Scottish Parliament.

The Assembly should not be impeded in its primary function of making legislation by legal challenges, some of which could be wholly spurious and based on a technical invalidity during proceedings. In respect of Parliament, that principle is enshrined in article 9 of the Bill of Rights, which provides that freedom of speech, debates and proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament. It is also reflected in respect of the Scottish Parliament in section 28(5) of the Scotland Act 1998, and in respect of the Northern Ireland Assembly in section 5(5) of the Northern Ireland Act 1998. Clause 92(3) and the equivalent Measure in clause 106(3), which relates to Acts of the Assembly, will put the Assembly on the same footing as Parliament, the Northern Ireland Assembly and the Scottish Parliament.

Mr. John Gummer (Suffolk, Coastal) (Con): If the principle is as obvious as the Minister suggests, why was it not thought necessary when the original Government of Wales Act 1998 was passed? If such a provision is now thought necessary, what has changed? Why was it originally thought that the position should be different from that of Scotland and Northern Ireland, but now thought obvious that the situation should be the same?

Nick Ainger: Because the Bill gives the Assembly the right to enact Assembly Measures. That is the difference between where we were at the time of the 1998 Act and where we are today.

Mr. Gummer Will the Minister thus tell me what I should say to my constituents who are not protected in
 
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such a way and have no such opportunity to deal with English matters with the same clarity that he is allowing for the Welsh?

Nick Ainger: That is a slur on not only the right hon. Gentleman, but all English Members of Parliament. Of course they have exactly the same powers and defences regarding legislation. Now that we are giving the Welsh Assembly the power to make Assembly Measures, it requires the same protection as Parliament, the Northern Ireland Assembly and the Scottish Parliament.

We have had a good run around all the issues. Obviously, we are still trying to persuade the new Conservative party—if I may call it that, given its position on devolution—to accept that they have to let go a bit. I hate to use this term, but perhaps it is still a little anally retentive. It is time to move forward and realise that the enhanced legislative powers will be good for the Assembly and for Wales, and certainly do not require a referendum.

Mr. Grieve: I hope that my participation in the previous Government of Wales Bill and, indeed, the Bill that became the Scotland Act 1998, has made me pragmatic about the constitution of our country. Our constitution is, of course, unwritten, and it has great flexibility. The right hon. Member for Torfaen (Mr. Murphy) made the point that constitutions evolve, which I acknowledge. I accept the Minister's argument that the separation of primary and secondary legislation has a certain flexibility. In recent years, we have seen ample signs that the Executive have taken to addressing matters through secondary legislation that the House would have thought of as requiring primary legislation in the past. I also acknowledge that, as the right hon. Member for Torfaen said on Second Reading, the important aspect of scrutiny is its effect on the delivery of good governance and legislation to recipients. I thus hope that it is not the case that sacred notions of parliamentary propriety or historical ways of conducting business are simply embedded in my mind. I learned that when we considered both Bills in 1998, which I enjoyed participating in very much.

The Minister's answers to the questions of my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) about amendment No. 162 were telling. The reason why the protection that we have under the Bill of Rights was not given to the Welsh Assembly in 1998 was because it was considered that it was being set up not as a parliamentary body, but as a local government body. At the time at which we debated the matter, I highlighted my worry that, whereas the solution that we had adopted for Scotland was quite neat—one might have disagreed with it, but shedding a whole raft of areas of parliamentary responsibility to the Scottish Parliament had a neatness about it—the solution for Wales was fraught with problems because of the difficulty of separating primary and secondary legislative functions. That is embedded in my mind from all those years ago.

Today's debate has highlighted the problem. Despite all the explanations that the Minister offered, we cannot escape the fact that the reason why the Government thought it necessary to give immunity to the Welsh Assembly was precisely because they intended to
 
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transfer primary legislative functions to it under part 3. I enjoy debating with the Minister—or any other hon. Member, for that matter—but when we are discussing constitutional measures, it is important that, while arguing our cases, we are honest with the electorate about what we are doing. The Government's tendency to say that changes do not really matter because they are minor incremental moves, or gentle tweaks to the system about which we should not worry, is quite wrong. Even by the standards of the present blurred distinctions between primary and secondary legislation, the Government are presenting a fundamental, major constitutional change.

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